Criminal Law

Autopsies: When Are They Done, Can You Object?

By Janet Portman, Attorney
Courts must often weigh the need for evidence derived from an autopsy against the wishes of the next of kin.

An autopsy is a medical examination of a dead body, performed in order to learn about the circumstances of the person’s death. Autopsies are done either before burial or after burial (which requires exhumation). State and federal statutes dictate the situations in which an autopsy can be done, which fall into two camps: those that are required by law due to the nature of the decedent’s death, and those that may be ordered by a judge in a civil or criminal context, to provide evidence in a lawsuit or prosecution.

This article explains the situations in which examiners must conduct autopsies, and to what extent, if at all, next of kin can object. It also covers criminal and civil litigants’ ability to obtain exhumation orders from a court, and how judges weigh conflicting interests of the party asking for the evidence against objections of next of kin. Finally, it covers the legal liability, if any, of examiners who conduct improper examinations.

Official Inquests or Autopsies

State statutes authorize autopsies in order to determine the cause of sudden, suspicious, or violent deaths. They’re performed by a coroner (a state official, not necessarily a medical doctor) or a medical examiner (who is a doctor). Statutes typically require that the deceased’s next of kin be notified that the procedure will take place. Objections by the next of kin won’t necessarily stop an autopsy; the examiner has discretion to proceed or not. A typical statute (such as Pennsylvania’s) authorizes an autopsy in the following situations:

(1) sudden deaths not caused by readily recognizable disease, or wherein the cause of death cannot be properly certified by a physician on the basis of prior (recent) medical attendance;

(2) deaths occurring under suspicious circumstances, including those where alcohol, drugs or other toxic substances may have had a direct bearing on the outcome;

(3) deaths occurring as a result of violence or trauma, whether apparently homicidal, suicidal or accidental (including, but not limited to, those due to mechanical, thermal, chemical, electrical or radiational injury, drowning, cave-ins and subsidences);

(4) any death in which trauma, chemical injury, drug overdose or reaction to drugs or medication or medical treatment was a primary or secondary, direct or indirect, contributory, aggravating or precipitating cause of death;

(5) operative and peri-operative deaths in which the death is not readily explainable on the basis of prior disease;

(6) any death wherein the body is unidentified or unclaimed;

(7) deaths known or suspected as due to contagious disease and constituting a public hazard;

(8) deaths occurring in prison or a penal institution or while in the custody of the police;

(9) deaths of persons whose bodies are to be cremated, buried at sea or otherwise disposed of so as to be thereafter unavailable for examination;

(10) sudden infant death syndrome; and

(11) stillbirths. (16 P.S. § 1237(a).)

When an autopsy is planned pursuant to statute, the next of kin has a limited right to object and request an exception based on religious grounds. It’s up to the next of kin to convey this objection in a clear and timely manner. The deceased person himself may object in advance, in a health care directive or other writing. In these situations, the coroner weighs the need to conduct the procedure against the harm that will befall those who are left to live with it. When the question is before a court (see Evidentiary Autopsies, below), judges will accede to the family’s wishes unless there is a genuine necessity for the procedure.

Evidentiary Autopsies

Autopsies are sometimes performed in the context of a criminal or civil trial. For example, a defendant charged with a homicide crime may ask the court to order the exhumation and autopsy of the victim, in order to prove or bolster a defense. Or, a defendant in a civil trial who has been accused of medical malpractice might want the deceased’s body examined in order to provide evidence in defense. In these situations, the court weighs the value of the probable evidence against any objections that the next-of-kin might raise.

The need for evidence that can be obtained by an autopsy arises in the following types of situations:

  • Workers compensation claims. Most states recognize the need in cases of work-related deaths when the autopsy will likely result in relevant evidence as to the cause of death. Typically, if survivors object, they risk having their benefit claims suspended or forfeited.
  • Insurance payouts. Most states require insurers who offer health, accident, and similar policies to include a provision in the policy whereby the insured agrees to an autopsy when necessary, to determine cause of death or other relevant information. Survivors may object, but at a price: California law, for example, lets decedents or their survivors block some autopsies, but at the risk of forfeiting claims for benefits. (Cal. Ins. Code Section 10111.5.)
  • Probate cases. People involved in probate litigation has asked for autopsies to determine the order of death of persons killed in a multiple fatality accident, to establish whether a woman ever had children, or to establish identifying marks.
  • Miscellaneous accident cases. Autopsies have been ordered in automobile accident cases (to determine, for example, presence of drugs or alcohol), medical malpractice, and cases claiming death due to asbestos exposure. As to the latter, cases have flooded the courts as survivors seek compensation by arguing that the deceased died from exposure long-ago to asbestos fibers. Industry defendants have demanded exhumations and autopsies, because according to some experts, only an autopsy can accurately determine the presence (or not) of asbestos-caused illness.
  • Criminal cases. Defendants in criminal cases have often demanded autopsies of their victims, in order to prove or bolster a defense. Most courts will order an autopsy in compelling cases, recognizing that the freedom of the defendant is at stake.

Liability of Coroners or Medical Examiners

When a coroner or medical examiner performs an autopsy pursuant to statute, that person is acting as a government official, and enjoys the same limited immunity that other officials have when carrying out their duties. In other words, they won’t be civilly liable for negligent acts, but they may be liable for wanton or reckless mistakes.

For example, failing to follow procedures for disposal of a body, resulting in the loss of that body, would probably be negligent behavior and would not subject the examiner to liability. But cavalier treatment of a body, or allowing unnecessary persons to view, photograph, and comment on the procedure might constitute reckless or wanton behavior. Survivors typically sue for infliction of emotional distress.

Questions to Ask Your Lawyer

  • How can I specify that, in the event of my death, I do not wish an autopsy to be performed?
  • What must I prove in order to hold a medical examiner liable for the manner in which he conducted an autopsy on my loved one?
  • I would like to know the precise cause of death of my loved one. How do I go about obtaining an autopsy?
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